NATURE AND DEVELOPMENT OF HUMAN RIGHTS

DEFINITION OF HUMAN RIGHTS

Human rights are the rights and freedoms that are believed to belong to all human beings. Human rights are universal,
indivisible, inalienable, and inherent.
 Universal: applicable to all
 Indivisible: all rights are equally important
 Inalienable: cannot be taken away
 Inherent: they are permanent.
OUTLINE HOW HUMAN RIGHTS HAVE CHANGED AND DEVELOPED OVER TIME + INVESTIGATE THE
EVOLVOING RECOGNITION AND IMPORTANCE OF UNIVERSAL HUMAN RIGHTS
Trade unionism and labor rights
 As the world progressed and forced labor was made illegal, conventional labor was the only legal means of
securing large groups of workers.
 Employment law is a relatively new development.
 The areas typically protected by trade unions are:
- Minimum wage
- Safe working conditions
- Equal pay
- Long service leave + Paid public holidays
- Maternity and paternity leave
- Annual leave
- Occupational health and safety laws
- Workers compensation
 Labour rights are protected by Articles 23 & 24 of the UDHR
The abolition of slavery Universal Education
 This largely began in the 18 century when
th
 All human beings have the right to an education.
rationalist people viewed slavery as violating  In NSW, the Public Instruction Act 1880 (NSW) led to the
the rights of mankind. government making education free, secular, and compulsory.
 At the end of WWII, under Article 4 of  As a result, the Australian population has a 99% literacy rate.
the UDHR, slavery was prohibited.  The right to free education is included under Article 26 of the
 Today there are an estimated 27 million UDHR.
people enslaved worldwide (ILO)  Education is no longer a desirable luxury, but a basic human
right
Self-determination Universal Suffrage
 This is a collective right belonging to a  Suffrage refers to the legal right to vote in a democratic election.
group.  The right to vote was recognized as a universal human right in
 People of territory have the right to Article 21 of the UDHR.
determine their political status.
 The right to self-determination is
contained in Article 12 of the UN Charter
& Article 1 of the ICESCR
Environmental Rights Peace Rights
 These are seen as essential to securing and  These are the rights for individuals to live in peace and harmony
promoting other human rights. Including, (collective right)
the right to life.  Article 51 of the UN Charter declares that states have the
 Stockholm Declaration (1972), Rio inherent right to individual or collective self-defense if an armed
Declaration (1992) and Kyoto Protocol attack against them occurs.
(1997) are all attempts made by the  Under Article 39 of the UN Charter, the UN Security Council
international community to deal with can authorize actions to maintain or restore peace
global warming, spread of epidemics,  The International Criminal Court has jurisdiction to try
marine and atmospheric pollution. individual people for war crimes and crimes against the
 The Environment Protection and international community
Biodiversity Conservation Act 1999 aims
to protect the rights of all flora and fauna
communities.
MAJOR HUMAN RIGHTS DOCUMENTS AND THEIR CONTRIBUTION TO THE DEVELOPMENT OF HUMAN
RGIHTS
Universal Declaration of Human Rights (UDHR):
 The first declaration was written by the UN
 Became part of international customary law and continues to monitor and report on the state of human rights around
the world.
 The declaration is soft law as it does not create legal obligations upon states.
 Influenced by NGOs- media, Amnesty International etc.
 Been a catalyst for more than 200 treaties, conventions, declarations, and bills of rights across the world.
 Part of international customary law- concepts that have developed in a way that has endured time to the extent that
they are widely accepted
 UDHR has now become international customary law and has become the foundation for a number of later human
right treaties.
 It was not until 1975 that it was finally succeeded by two binding international treaties setting out many of the
minimum rights: the ICCPR and the ICESCR
International Covenant On Civil & Political Rights (ICCPR):
 The ICCPR aims to protect people from arbitrary use of power by a government and uphold the rule of law.
 It also acts to protect individuals from oppressive governments.
 All signatory countries are obliged to give legal recognition to civil and political rights; however, countries can have
reservations.
- For example, Australia reserves the right to mandatory detention of asylum seekers due to security.
 Signatory countries are monitored by the Human Rights Committee, which reports on states and investigates
reported violations.
 The ICCPR contains monitoring and periodic reporting arrangements for member states. It is monitored by the
Human Rights Committee (a separate body from the Human Rights Council), which reports on compliance by
member states and investigates violations. At the beginning of 2010, the ICCPR had been ratified by 165 states.
International Covenant on Economic, Social and Cultural Rights (ICESCR):
 Hard law
 Approved in 1966, but came into effect in 1976
 Includes rights to education and standard of living
 Never been ratified in African countries
 The ICESCR contains labour rights such as fair working conditions, fair wages and trade unions are all covered in
the covenant
 ratified by 160 states, notably the US signed the ICESCR in 1979 but has never ratified. As well as Burma,
Malaysia and Saudi Arabia have not signed nor ratified the treaty.
PROMOTING AND ENFORCING HUMAN RIGHTS
ASSESS THE ROLE OF STATE SOVEREIGNTY IN PROMOTING AND ENFORCING HUMAN RIGHTS
 Authority for a state to make decisions on behalf of itself concerning domestic and international issues.
 State sovereignty contains limitations on the basis that states have an obligation to adhere to international
documents that it has ratified.
 State sovereignty is an important feature of international law as it gives nation-states autonomy with the
responsibility to make decisions in the best interests of the state’s people.
 State sovereignty means that states can simply ignore international documents if they deem it to not be in their own
best interests.
 It can promote human rights by morally binding the state to be responsive to human rights issues, and a state may
respond to this by enacting domestic legislation to comply with international obligations.
 An example of this is Australia enacting the Racial Discrimination Act 1975 (Cth) in compliance with the UDHR.
Arguments FOR state sovereignty Arguments AGAINST state sovereignty

 States can exercise influence in international  States can ignore international human rights
forums  States can enact discriminatory laws and engage in
 States can impose trade sanctions on other repressive practices
states for breaches of human rights  States can remove existing domestic human rights
 States can implement domestic laws to protect protections
human rights  States can ignore domestic human rights violations
EVALUATE THE EFFECTIVNESS OF INTERNATIONAL RESPONSES IN PROMOTING AND ENFORCING
HUMAN RIGHTS
United Nations:
 The UN is an intergovernmental organization that came into existence after the end of WWII.
 The UN has substantial influence over world order.
 Their main aim is to promote world peace and enforce human rights.
 The UN has 193 members
 Australia is a member of the U.N. since the end of WWII
 EFFECTIVNESS:
- The United Nations is an intergovernmental body which seeks to play an important role in the promotion of
human rights
- For example, the General Assembly provides a forum for all member governments to raise human rights issues
and concerns. The Assembly passes declarations condemning human rights abuses
- The Assembly passes declarations condemning human rights abuses. In contrast, the Security Council passes
binding resolutions authorising humanitarian interventions.
- The Human Rights Council can investigate human rights abuses and hear individuals responding to violations.
- All of the actions promote human rights by increasing awareness and promoting international laws and
compliance with these laws.
 UNITED NATIONS AS AN IGO
UN GENERAL ASSEMBLY (UNGA)
 Representatives from all member states and each state have equal voting power.
 Main forum for international discussions, many relating to human rights.
 UN Human Rights Council reports directly to UNGA.
UN SECURITY COUNCIL (UNSC)
 Has responsibility for the maintenance of peace and security.
 Exercises power through legally binding resolutions.
 Can authorize peace-keeping, military action, or sanctions.
 5 permanent members (P5) – France, USA, Russia, China, UK
 Each country has “veto power”
 The UNSC has ten non-permanent members with a two-year term.
 To many people, veto power is seen as being ineffective in dealing with international issues, including human
rights abuses.
FOR AGAINST
Veto power prevents the UNSC from The UNSC has been successful in resolutions (East Timor 1626)
acting on the will of the majority.
The Veto power can be hijacked by petty The P5 is the only country to have nuclear arsenals. Veto power
national interests rather than enabling gives these states the power to express their disagreement with an
resolutions to be passed on merit. international issue within the system, rather than through nuclear
force.
The P5 does not reflect the geopolitical There is no requirement in the UN Charter for the P5 to be
reality of today. geopolitical realities.
Economic and Social Council (ECOSOC)
 Includes 54 members who meet annually.
 The council includes committees that discuss economic, social, environmental, and humanitarian issues.
UN Secretariat
 This is the main administrative body of the United Nations, consisting of 40,000+ staff worldwide
International Court Of Justice (ICJ)
 Advisory only
 Has jurisdiction to settle disputes submitted by member states
 Produces advisory opinions on international law.
Office of the UN High Commissioner for Human Rights (OHCHR)
 This is the main administrative agency in the UN Secretariat that works to promote and protect human rights.
 It aims to advance universal ratification and implementation of the UDHR and human rights standards and
promote universal enjoyment of human rights.
 It also provides support to other UN human rights bodies (AHRC)
UN Human Rights Council (UNHRC)
  This is an intergovernmental body established in 2006.
 The council makes recommendations regarding human rights.
 It also has a complaints procedure that allows individuals, rather than states, to bring issues to the attention of
the council.
 The adding of the USA to the council in 2009 – strengthened its ability and effectiveness due to the influential
nature of the USA in world order.
 The council has been criticized for its level of effectiveness by scholars, on the basis that it acts in political
interests rather than in the interests of human rights.
Courts, tribunals and independent statutory authorities:
 EFFECTIVNESS:
- Of the thousands of situations and potential cases that could have been investigated by the ICC and come to trial,
only 44 people have been indicted, with 45 cases before the ICC.
- Further, only 14 out of the 45 have resulted in a complete proceeding, and only nine were convicted.
International Court Of Justice (ICJ): International Criminal Court (ICC):
 This is an advisory organ of the United Nations.  ICC was established in 2002 to prosecute
 It has heard few cases since its establishment. international crime.
 The strongest criticism lies in the fact that the ICJ  The ICC is not created for human rights violations
requires the consent of state parties to hear matters – specifically, but it does hear matters relating to the
therefore, its jurisdiction is limited most serious international crimes, most of which
involve a breach of human rights.
 The ICC can prosecute individual people rather than
states
Non-government organizations (NGO’s):
 These are organizations independent of the government.
 Examples of NGOs include The Red Cross, Amnesty International, and Human Rights Watch.
 NGOs play a role in informing the global community of human rights violations and progress.
 NGOs research, document and investigate human rights cases.
 NGOs are effective because they are independent of governments and political bias.
 They work to inform the general public of what governments may not want them to know.
Media:
 The media often work closely with NGOs.
 They can have a significant influence on the general public.
 However, this is only in countries with freedom of the press.
 Restriction of internet access/television means that the media is not as effective in some countries.
 The rights and responsibilities of the media and individuals are included in Article 19 of the UDHR
HOW ARE HUMAN RIGHTS INCOPERATED INTO AUSTRALIAN DOMESTIC LAW?
 Australia has a dualist system, meaning that Australia needs to legislate the treaties it ratifies to make them
domestically binding.
 If Australia had a monist system, like France, any treaty ratified, automatically becomes an Act of Parliament.
 Australia passes legislation to incorporate international human rights documents into its domestic law
EVALUATE THE EFFECTIVNESS OF AUSTRALIAN RESPONSES IN PROMOTING AND ENFORCING
HUMAN RIGHTS

Separation of powers: The Constitution:

 The separation of powers is  The Constitution includes both express and implied rights.
protected in the Constitution.  Express rights are explicitly written human rights protected by the
 Separation of powers involves constitution.
separating the judiciary, executive,  Implied rights are rights that aren’t explicitly written, but are implied
legislative arms of the state.  such as right to freedom of political communication; type of free speech.
prevent abuse of power  The express rights are freedom of religion, the right to vote, right to a
 It allows for the judiciary arm jury in a trial, right to just terms when the Commonwealth compulsorily
to reject any legislation that it acquires a property.
deems to be an obstruction of  The ability of the Australian Constitution to protect human rights is very
human rights limited
Division of powers: Common law:
 This is the basis of the
 Australian federation: division  This is the body of law that is composed of the judgements of the courts.
on a state and federal level.  Common law is an evolving prospect that was passed down from the UK
 Heads of power are the powers to Australia and evolves independently from the government – protecting
listed in the Constitution as many human rights.
areas that the Commonwealth  Common law rights are not fixed and can be removed later by Parliament
can legislate on such as  Judgements develop rights on a case-by-case basis.
marriage and currency.  International law is an important influence on common law, especially
 Residual powers are powers when international law declared the existence of universal human rights.
which belong to the states and  Common law does not offer absolute protection of human rights, because
are not written in the common law rights are not fixed - that is, rights in the common law, no
Constitution. matter how crucial they may be seen to be, can be remove by any Act of
 An extremely important head of Parliament, because any legislation that conflicts with the common law
power given to the position overrides that common law position.
Commonwealth regarding  The common law cannot be relied upon to develop new rights, as
human rights is the external judgements will only define those rights on a case-by-case basis, and of
affairs power. This power gives and when a relevant matter is brought before the court.
the Commonwealth the  In Australian Crime Commission v Louise Stoddart and Anor (2011), the
authority to include High Court found that spouses had no right to silence. This overturned a
international treaties in presumption that has existed for hundreds of years, and that protected the
legislation. privacy of communication within a marriage
Statute law: Courts and tribunals
 These are parliament-made
laws.  Australian Human Rights Commission (AHRC):
- The AHRC was established under the Human Rights Commission Act
 Many of these human rights
1986 to deal with the alleged violations of the Anti-Discrimination
statute laws were created in
Act 1977.
response to international
- The Commission aims to investigate discrimination complaints and
documents.
human rights breaches.
 Statute law is a powerful tool in
- The AHRC promotes public awareness about human rights, providing
human rights protection and
many laws have been wide- legal advice, conducting public inquiries, and producing
reaching, but like common law, recommendations.
rights laid out in statute are not - It also gives advice and makes submissions to parliament on the
fixed- they can too be removed development of laws, policies and programs.
by a later Act of Parliament.  High Court of Australia (HCA):
Some of the most important - The HCA has the power to set precedents that are binding on
pieces of human rights other courts. They can also overturn legislation that conflicts with
legislation in recent times are: the Australian Constitution.
- Racial Discrimination Act - The HCA is the most important protector of human rights in
1975 (Cth) Australia, as they can declare legislation inconsistent or invalid.
- Sex Discrimination Act 1984 Human rights are protected effectively by the High Court of
(Cth)
Australia.
- Australian Human Rights
- The case of Mabo v Queensland (No. 2) is one of the most
Commission Act 1986 (Cth)
- Disability Discrimination important cases in Australian law and involved recognition for
Act 2004 (Cth) the first time of Australia’s Indigenous peoples’ right to a title in
their traditional land
Media: Non-governmental organizations:

 Although it can be independent  NGOs along with the media investigate and report on human rights
of NGOs, the media often issues.
publishes the findings of NGOs  NGOs are largely responsible for “naming” and “shaming” human rights
to the general public. violations, shaping public opinion, and pressuring the government to
 The right to freedom of political make legislative changes.
communication is an implicit
right in the constitution, as was
 found in the Lange v ABC
(1997) case.
DISCUSS ARGUMENTS FOR AND AGIANST A CHARTER OF RIGHTS IN AUSTRALIA
A Charter of Rights
Compared to many other countries, Australia does not have a charter of rights.
ARGUMENTS FOR A CHARTER OF RIGHTS ARGUMENTS AGAINST A CHARTER OF RIGHTS

High community support – 87.4% of submissions to the Without the Charter of Rights, Australia is not
National Human Rights Consultation notoriously breaching human rights
Redressing the inadequacy of human rights protections in Undermines parliamentary sovereignty
Australia currently (implied rights of the Australian
Constitution)
Centralizing the sources of human rights (rather than the Australia could face challenges similar to the U.S.
Constitution, common law, statute law and the High regarding their gun laws, as changing something like the
Court of Australia) Bill of Rights is no easy task.
Improves Australia’s international standing concerning There is an economic cost surrounding the creation of the
human rights Charter
Bringing Australia in line with other similar democracies Unnecessarily legalized human rights
such as Canada, New Zealand, America & England
Would help to promote a stronger culture of respect and
appreciation for human rights

CONTEMPORARY ISSUE: HUMAN TRAFFICKING AND SLAVERY

Human trafficking:

 to exploit or use someone for profit.Human trafficking generally refers to the movement of these people to deliver them into slavery..
 A definition of Human Trafficking can be found in United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children:
- “The recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of
coercion, of abduction, of fraud, of deception of the abuse of power or of a position of vulnerability or of the giving or receiving
of payments or benefits to achieve the consent of a person having control over another person for the purpose of exploitation...”